Gun possession is limited by gun control laws in an effort to ensure public safety. Whether it is illegal to possess a gun largely depends on factors such as:
- A person’s age;
- Their background;
- The type of gun possessed; and
- Whether they are in violation of concealed carry laws.
The following list further details regarding factors considered for gun control laws:
- Age And Type of Gun: Federal law prohibits the sale of a handgun to anyone who is under age 18; however, the same restriction does not apply for long guns, such as rifles and shotguns. Each state has the ability to implement more strict age requirements, and as such, the law differs by state so that the minimum age to purchase a handgun in many states is actually 21 years old.
- Background: A person’s criminal background can also make it illegal for them to possess a gun. Federal law prevents the sale of a gun to anyone who:
- Has been convicted of or charged with a crime in federal court, that carries a possible sentence of over a year in jail, which is generally a felony;
- Has been convicted of or charged with a crime in state court, that is a felony or is a misdemeanor that is punishable by more than 2 years in prison;
- Is a fugitive;
- Is known to be addicted to controlled substances, which requires that the person has “lost the power of self-control with reference to the use of controlled substance,” and is sometimes inferred from multiple recent drug convictions;
- Has been found by a court or other lawful authority to be a danger to themselves or others, or who have been involuntarily committed for drug/alcohol abuse or mental health issues;
- Has been convicted of certain crimes, or is subject to a court order associated with domestic violence or a serious mental condition;
- Is in the U.S. illegally; and/or
- Was dishonorably discharged from U.S. Military Service.
There are some locations in which gun possession is prohibited, even by someone who can legally possess a gun elsewhere. Federal law prohibits gun possession at:
- Federal facilities such as courthouses;
- Post offices;
- Airports and on airplanes, except when the weapon is unloaded, is in a checked bag, and the airline is made aware of the weapon; and
- School zones, meaning K-12, except when someone has a state-issued concealed carry permit.
Some other areas where guns are commonly prohibited by states include:
- Bars or restaurants that serve alcohol;
- Polling places; and
- Daycare facilities.
How Do Gun Laws Differ From State To State?
Pursuant to the Second Amendment of the U.S. Constitution, American citizens have the “right to bear arms,” or the right to possess guns. To reiterate, because of the concept of “state’s rights,” individual states have different regulations in terms of gun possession.
An example of this would be how Texas has no regulation on purchasing assault rifles, no requirement for registering firearms once they are purchased, and allows gun owners to carry firearms with little government interference. Conversely, California bans the sale of certain types of guns, and makes it a criminal misdemeanor to openly carry an unloaded gun in specific areas.
The majority of gun legislation in the United States is enacted at the state level. States take different approaches in terms of the following factors:
- Sales, such as whether background checks are required, the age in which you must be to purchase a firearm, etc;
- Permits, such as whether one is required and how long it takes to process;
- Licensing laws;
- Carrying laws, meaning open carrying laws versus concealed weapons; and
- The legal use of guns in self-defense.
What Are The Federal Laws Regarding Gun Possession?
Generally speaking, federal law establishes the baseline for the types of people who are ineligible to purchase firearms. In addition to the previously mentioned prohibited categories, pursuant to the federal Gun Control Act of 1968, the sale of firearms is prohibited to any person who:
- Is either a criminal or under indictment for a crime that is punishable by more than a year;
- Has renounced U.S. citizenship;
- Has an outstanding restraining order against them;
- Is committed to a mental institution; and/or
- Has been convicted of domestic violence.
Possession of a firearm or ammunition by a prohibited person is punishable by up to 10 years imprisonment. Additionally, if the person has three or more prior convictions of a felony crime of violence such as:
- Assault; and/or
- Conviction of drug trafficking, they can receive a minimum sentence of 15 years without parole.
In 1993, the Brady Handgun Violence Prevention Act was enacted and amended the Gun Control Act of 1968. This imposed a waiting period of 5 days before a licensed importer, manufacturer, or dealer can sell, deliver, and/or transfer a handgun to an unlicensed person.
It is imperative to note that this only applies to states that do not have alternate systems of conducting background checks on handgun purchasers. Nine states which include California, Connecticut, New York and Washington, require universal background checks. Maryland and Pennsylvania require point of sale background checks.
The National Firearms Act places restrictions on the possession and sale of machine guns, short-barreled shotguns, and silencers. Additionally, it imposes a tax on the making and transfer of these types of firearms, and requires the purchaser to go through a lengthy background check. It also necessitates that the weapon is registered with the Bureau of Alcohol, Tobacco, and Firearms.
What Are Some Other Gun Possession Restrictions?
Some states prohibit specific types of firearms completely, such as:
- Assault Weapons: Semi-automatic guns with detachable magazines (e.g. AK-47, M-16);
- “Ghost Guns:” Firearms assembled from kits or made with 3D printers, that are untraceable by law enforcement and often undetectable by metal detectors;
- Large Capacity Magazines: Magazines containing more than 10 rounds;
- Machine Guns: Fully automatic firearms that continue firing bullets as long as the trigger is held down;
- 50 Caliber Weapons: It is important to note that very few states have banned these; and/or
- Silencers: These are used to prevent someone from hearing the sound of gunfire, or from seeing the muzzle flash.
Restrictions can also be based on the way the gun is being held or carried by its owner. An example of this would be how carrying a concealed gun while in public can be a crime depending on which state you are in. Fifteen states do not prohibit concealed carry, but the rest require you to first obtain a concealed carry permit, which can be considerably difficult in some states.
Carrying an openly visible gun in public is prohibited entirely by 5 states, while 15 states require some form of permit or license in order to do so. Open carry is allowed without a permit in around 30 states.
While the Second Amendment grants the right to bear arms, that right is not absolute. Because of this, carrying a firearm in violation of one of the above mentioned restrictions can result in serious legal consequences, and carrying a gun while committing another crime will result in considerably harsher penalties.
Someone who has been convicted of a felony is nearly always prohibited from carrying a gun, and being a felon in possession of a firearm is punished harshly. However, most states allow a felon to restore their gun possession rights as long as the applicant is not deemed dangerous to public safety. Restoring the rights must not be contrary to the public interest.
Do I Need A Lawyer For Help With Federal Gun Possession Laws?
You will need to consult with a criminal lawyer regarding any questions you may have about gun sale transactions or gun possession before you buy, sell, or use a gun.
A criminal attorney will be able to inform you of your legal rights and options according to your state’s specific laws. Finally, an attorney will also be able to represent you in court, as necessary.